Regulations that Deserve a Burial

The Scrapbook

April 1 - April 8, 2013, Vol. 18, No. 28

Fifteen months ago, The Scrapbook cheered on the monks of Saint Joseph Abbey, in Covington, Louisiana, as they fought in court for their right to earn a living by selling to the public the plain wooden caskets they’d been making for years for their own use. Now we celebrate their triumph in the 5th U.S. Circuit Court of Appeals. Last week, the court voted unanimously to free them from “irrational” regulations.

Here’s what those regulations required—and listen up, you skeptics of Tea Party demands for less government and for economic liberty. We’re talking about a product designed to be buried in the ground forever.

Under the legal regimen secured by the Louisiana Board of Embalmers and Funeral Directors, according to the 5th Circuit,

a prospective casket retailer must become a licensed funeral establishment. This requires building a layout parlor for thirty people, a display room for six caskets, an arrangement room, and embalming facilities. Second, the establishment must employ a full-time funeral director. A funeral director must have a high school diploma or GED, pass thirty credit hours at an accredited college, and complete a one-time apprenticeship. The apprenticeship must consist of full-time employment and be the apprentice’s “principal occupation.” None of this mandatory training relates to caskets. . . . A funeral director must also pass a test administered by the International Conference of Funeral Examining Boards. The exam does not test Louisiana law or burial practices.

The purpose of these Alice in Wonderland requirements was plain: to protect the guild interests and profits of a politically favored industry. So that the funeral directors and licensed embalmers who occupy eight of the nine seats on the state board could comfortably enjoy their monopoly, the upstart monks of Saint Joseph would have to think of some other way to make a buck.

Well, not anymore—at least not in Texas, Louisiana, and Mississippi, the jurisdiction covered by the 5th Circuit.

The state board has 90 days to decide whether to appeal to the Supreme Court, which might or might not take the case. Either way, there is now a “circuit split” on the constitutionality of government protection of a narrow economic interest without public benefit. The 6th Circuit unanimously struck down a similar casket monopoly in 2002, while the 10th Circuit upheld an Oklahoma law in 2004, cynically pronouncing the “dishing out of special economic benefits” to the well connected to be the “national pastime” of governments.

Sooner or later, the High Court seems likely to clear up the conflict. That is the goal of the strategically selected litigation pursued by the valiant Institute for Justice in these and other cases: to have the Supremes strike a blow for individual economic liberty and place limits on legislators’ power to rig the system for their friends. Not to mention burying bad regulations.